Alternative Dispute Resolution: Analysis Under Indian Legal System and Global Practices of ADR

Abstract

Alternative Dispute Resolution (ADR) typically refers to processes and techniques of resolving disputes that fall outside of the judicial process (formal litigation – court). Courts are increasingly requiring some parties to utilize ADR of some type, most often mediation, before permitting the parties' cases to be heard. There are generally four categories of ADR, which, are mediation, arbitration, negotiation and collaborative law. Conciliation is sometimes included as a fifth category. ADR is an alternative to formal legal system ADR originated in USA in a drive to find alternatives to the traditional legal system, felt to be adversarial, costly, unpredictable, rigid, over-professionalized, damaging to relationships, and limited to narrow rights-based remedies as opposed to creative problem solving. Alternative Dispute Resolution in India was founded on the Constitutional basis of Articles 14 and 21 enshrined in part III of the constitution of India which grant the important Fundamental Rights of Equality before Law and Right to life and personal liberty respectively to all the citizens. ADR in India also tries to achieve the Directive Principle of State Policy relating to Equal justice and Free Legal Aid as laid down under Article 39-A of the Constitution. The Acts which deal with Alternative Dispute Resolution are Arbitration and Conciliation Act, 1996 and the Legal Services Authorities Act, 1987. Section 89 of the Civil Procedure Code, 1908 makes it possible for Arbitration proceedings to take place in accordance with the Acts stated above. Also arbitration in India is modeled on the UNCITRAL model of arbitration. ADR in India, its concepts, functioning, shortfalls, solutions etc shall be dealt in detail later. Furthermore this paper shall deal with the study of various institutions of ADR globally, various ADR mechanisms and its practice in India as well as Globally.